Editorial: A referendum on 'Obamacare' in November

Friday

Jun 29, 2012 at 12:01 AMJun 29, 2012 at 6:55 AM

So it was the predicted 5-4, after all, if not in the direction we would have wagered. The U.S. Supreme Court has upheld the essence of the Patient Protection and Affordable Care Act - aka "Obamacare" - with Chief Justice John Roberts, a Bush appointee, seeming to defy stereotype by joining the court's liberal bloc. A little more court consensus would have been nice. Arguably nothing has been resolved.

So it was the predicted 5-4, after all, if not in the direction this page would have wagered. The U.S. Supreme Court has upheld the essence of the Patient Protection and Affordable Care Act - aka "Obamacare" - with Chief Justice John Roberts, a Bush appointee, seeming to defy stereotype by joining the court's liberal bloc. A little more court consensus would have been nice. Arguably nothing has been resolved.

Specifically the slim court majority found constitutional the most controversial element and financial foundation of the law - the "individual mandate" - that compels everyone to purchase insurance or pay a penalty, to be collected by the IRS. As such the mandate is essentially a tax, and "the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness," wrote Roberts for the majority.

If on balance this looks like a win for the Obama administration, congressional Democrats and 30 million uninsured Americans, at least in the short-term, it also is a very nuanced decision - at times painful to observe in its logical and verbal gymnastics - that falls short of a grand slam for the law's supporters, especially in the long term.

First, a majority of the court ruled that Uncle Sam's expansion of Medicaid to force the states to cover 17 million Americans who earn too much to get assistance but not enough to buy their own insurance, under threat of losing all of their Medicaid funding as punishment if they refuse, was an overreach, essentially an unconstitutional "gun to the head" of state's rights, in Roberts' words. It will be interesting to see if states opt out of that provision, especially among the 26 that brought this lawsuit in the first place.

Second, Roberts rejected the White House's contention that Uncle Sam's regulatory powers under the Commerce Clause made the individual mandate permissible, insisting that Congress does not have the "power to compel individuals not engaged in commerce to purchase an unwanted product." Already that has been interpreted in some quarters as a weakening of the Commerce Clause and a down-the-road win for limited government conservatives, who will now initiate multiple challenges to other laws - from civil rights to consumer safety to environmental regulations - justified under that umbrella. The other four justices who joined Roberts in the majority - Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer - issued a separate dissent on that point, calling it "a stunning step back that should not have staying power."

All of this may fall under the heading of "Be careful what you wish for."

Local and national reactions to the decision were swift and as polarized as this Supreme Court was - Justice Anthony Kennedy spoke emphatically for the minority in calling Obamacare "invalid in its entirety" - ranging from this decision being a godsend for uninsured Americans to "we are no longer a free people" and this being "the largest tax increase in American history."

One has approached this debate from two perspectives. The first is the moral component of providing health care to those who are uninsured through no fault of their own and for whom the free market has failed, prompting government to step in. That would include those with pre-existing conditions, with this law forbidding insurance companies from denying them coverage or jacking up their prices. It's hard to imagine how any compassionate human being could feel badly about the sick having access to health care that doesn't come so late in the game - often in an emergency room - that it ceases to matter but still costs them more than they can reasonably afford. Many of those folks are celebrating today.

The second is the unsustainable cost of health care, undermining the economic competitiveness of private employers and straining government resources in an America with high unemployment, stagnating wages and staggering deficits. On that score, among others, Obamacare was lacking.

In any case, to pretend as some critics of Obamacare have that everything was fine before it was passed had no basis in reality. Something needed to be done, and may yet have to be. About the only thing anyone can be assured of right now is that this battle is far from over. One would be wary of drawing too many conclusions about whom this decision helps or hurts, or of making too many long-range plans based on Thursday's ruling.

Roberts has been simultaneously vilified as a traitor to the conservative cause and lauded as crazy like a fox, his genius in threading the needle here yet to be widely recognized. Ultimately he did not say this was a good law, just that it wasn't unconstitutional. He did write that the court should retain "a general reticence to invalidate the acts of the nation's elected leaders," and that "it is not our job to protect the people from the consequences of their political choices." He's tossed this back to the electorate, which will have its say soon enough.

On the one hand this now becomes Obama's legislative achievement, the historic game-changer, and he the president who did what those before him could not, redefining health care from a privilege to a right. This also energizes his opposition, while forcing him to defend what the chief justice has labeled a tax increase. Mitt Romney insists this is a "bad law" that he'll nullify as president once a GOP Congress sends him a repeal bill, as promised. Meanwhile, he gets to explain why he opposes health care coverage for 30 million Americans, and how Obamacare is different from the "Romneycare" he passed as governor of Massachusetts, which he has not convincingly done thus far.

And for American voters, this becomes more than just a contest between Obama and Romney, Republican and Democrat. It's also a referendum on the Patient Protection and Affordable Care Act. Wouldn't trust the polls on this one. Unless you're on your deathbed, there is no excuse not to vote.

Journal Star of Peoria, Ill.

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